Excerpt:limitation act - act xv of 1877, schea. ii, articles 178, 179--application for execution 'struck off the file'--further application for execution--renewal of previous application. - .....sufficiently stated by the district judge, but we cannot agree with him in his conclusion that the district munsif did, in fact, dispose of the application for execution, dated the 14th april 1893. the district munsif's order on the petition is 'execution stayed by the subordinate court; petition struck off the file consequently.'thus the district munsif struck the petition off his file, simply because execution had been temporarily stayed by the subordinate court. the district munsif had no legal authority to dismiss the petition, simply because the execution had been stayed, nor did he, in fact, dismiss it. he struck it off his file, by which we apprehend he merely ceased to show it as pending in his statistical returns, but the petition not having been dismissed or otherwise legally.....

Judgment:

1. The facts of the case are sufficiently stated by the District Judge, but we cannot agree with him in his conclusion that the District Munsif did, in fact, dispose of the application for execution, dated the 14th April 1893. The District Munsif's order on the petition is 'Execution stayed by the Subordinate Court; petition struck off the file consequently.'Thus the District Munsif struck the petition off his file, simply because execution had been temporarily stayed by the Subordinate Court. The District Munsif had no legal authority to dismiss the petition, simply because the execution had been stayed, nor did he, in fact, dismiss it. He struck it off his file, by which we apprehend he merely ceased to show it as pending in his statistical returns, but the petition not having been dismissed or otherwise legally disposed of must be regarded as still pending. This was the view taken by MUTTUSAMI AYYAR, J., in an exactly similar ease Sri Rajah Papamma Rau v. Venkatappayya, appeal against Appellate Order No. 34 of 1892 unreported. in which he followed the rulings of both the Calcutta and Bombay High Courts. Biswa Sonan Chunder Gossyamy v. Binanda Chunder Dibingar Adhikar Gossyamy I.L.R. Cal. 416 and Chintaman Damodar Agashe v. Balshastri I.L.R. 16 Bom. 294.

2. The next question is this: Are we bound to regard the present application for execution as a new application for execution, or may we regard it as in substance an application to continue the pending proceedings, i.e., the application of the 14th April 1893. In form it is a new application, and the decision of the District Judge that it must be dealt with as such, is based on the rulings in Narayana Nambi v. Pappi Brahmani I.L.R. 10 Mad. 22 . PARKER, J., was a party to that decision, but in a later ease Chathappan Nayar v. Kun hammed Kutti appeal against Order No. 108 of 1895 unreported he held that an application similar to that now in question might properly be regarded as an application in continuance of an earlier application, and pointed out that in Narayana Nambi v. Pappi Brahmani I.L.R. 10 Mad. 22 the application was to attach again the same property which had been released on an objection petition, but that in the case before him there had been no stoppage in the proceedings in execution. So in the present case we must hold that there has been no legal stoppage in the execution proceedings, and therefore the case in Narayana Nambi v. Pappi Brahmani I.L.R. 10 Mad. 22 is not applicable. This view is in accordance with the decisions in Chandra Prodhdn v. Gopi Mohun Shaha I.L.R. 14 Cal. 385 Chintaman Damodar Agashe v. Balshastri I.L.R. 16 Bom. 294 and Thakur Prasad v. Fakirullah I.L.R. 17 All. 106.

3. For these reasons we consider that the present application may be properly regarded as one in continuance of the application of the 14th April 1893, which is still legally pending before the District Munsif.

4. We must, therefore, set aside the order of the District Judge and restore that of the District Munsif with costs in this and in the Lower Appellate Court.